August 30, 2018 VIA ONLINE PORTAL David M. Hardy, Chief Record/Information Dissemination Section Records Management Division Federal Bureau of Investigation 170 Marcel Drive Winchester, VA 22602-4843 Online Request via https://efoia.fbi.gov Re: Freedom of Information Act Request Dear Mr. Hardy: Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the implementing regulations of the Department of Justice (DOJ), 28 C.F.R. Part 16, American Oversight makes the following request for records. On August 27, 2018, the Office of the Inspector General (OIG) of the U.S. General Services Administration (GSA) published a report, “Review of GSA’s Revised Plan for the Federal Bureau of Investigation Headquarters Consolidation Project.”1 The report alleges that GSA Administrator Emily Murphy may have misled Congress about the White House’s involvement in the FBI Headquarters Consolidation project. Notably, it highlights that the White House invoked executive privilege to prevent the OIG—a component of GSA, an executive branch agency—from learning statements made by the President in meetings regarding the FBI Headquarters project. In addition, recent press reporting alleges that high-level Trump administration officials played roles in scuttling plans for relocating FBI Headquarters—instead prioritizing the costlier option of building a new headquarters downtown. 2 Given President Trump’s reported interest in the future of the FBI Headquarters and its proximity to Trump International Hotel—a property in which he still maintains a financial interest—it is in the public interest to understand the extent to which Trump’s personal business motivations are dictating matters of national security. American Oversight seeks records to inform whether and to 1 OFFICE OF INSPECTOR GEN., U.S. GEN. SERVS. ADMIN., REVIEW OF GSA’S REVISED PLAN FOR THE FEDERAL BUREAU OF INVESTIGATION HEADQUARTERS CONSOLIDATION PROJECT (Aug. 27, 2018), https://www.gsaig.gov/sites/default/files/audit- reports/Review%20of%20GSA%E2%80%99s%20Revised%20Plan%20for%20the%20FBI%20Hea dquarters%20Consolidation%20Project%20REDACTED%20-%20508%20compliant.pdf. 2 Jonathan O’Connell, Trump Intervenes in FBI Headquarters Project, WASH. POST, July 30, 2018, https://www.washingtonpost.com/business/2018/07/30/trump-intervenes-fbi-headquarters- project/?utm_term=.f264663e29a6. 1030 15th Street NW, Suite B255, Washington, DC 20005 | AmericanOversight.org what extent the president’s personal financial interests influenced a multi-billion-dollar federal project with national security considerations. Requested Records American Oversight requests that the FBI produce the following within twenty business days: All records reflecting communications (including emails, email attachments, text messages, voicemails, voicemail transcripts, messages on messaging platforms (such as Slack, GChat or Google Hangouts, Lync, Skype, WhatsApp, Facebook messaging, Twitter Direct Messages, or Signal), telephone call logs, calendar invitations, calendar entries, meeting notices, meeting agendas, informational material, draft legislation, talking points, any handwritten or electronic notes taken during any oral communications, summaries of any oral communications, or other materials) between or among (including those copied or blind copied on emails) the following individuals and any person at the White House Office (including anyone with an email address ending in @who.eop.gov) regarding the FBI headquarters consolidation project: a. Director Christopher Wray b. Former Director James Comey c. Deputy Director David Bowdich d. Former Deputy Director Andrew McCabe e. Associate Deputy Director Paul Abbate f. Former Associate Deputy Director David Bowdich g. Chief of Staff to the Director Zachary Harmon h. Former Chief of Staff to the Director James Rybicki i. Anyone communicating on behalf of the Deputy, Deputy Director, Associate Deputy Director, or Chief of Staff (including those performing duties in an acting capacity), such as a Chief of Staff, Executive Assistant, or Secretary j. Unit Chief, Headquarters Program Management Office, Office of Resource Planning k. Assistant Director of the Finance Division Richard Haley, II For this request, American Oversight requests that FBI use the following terms to help identify responsive records: i. “consolidat*” ix. “Trump Org*” ii. “renovat*” x. “Post Office” iii. “demoli*” xi. OPO iv. “rebuild*” xii. Headquarters v. “relocat*” xiii. HQ vi. “Trump Hotels” xiv. HQS vii. “Trump International Hotel” xv. HQs viii. TIH xvi. JEH Please note that American Oversight is using the asterisk (*) to designate the standard use of “wildcards” in the search for responsive records. For example, a search for “renovat*” 2 DOJ-FBI-18-0520 would return all of the following: renovate, renovates, renovated, renovation, etc. If FBI is unable to search for wildcards, please advise so that we may specifically include the variations that we would like searched. Please provide all responsive records from January 20, 2017, through the date of search. American Oversight seeks all responsive records regardless of format, medium, or physical characteristics. In conducting your search, please understand the terms “record,” “document,” and “information” in their broadest sense, to include any written, typed, recorded, graphic, printed, or audio material of any kind. We seek records of any kind, including electronic records, audiotapes, videotapes, and photographs, as well as letters, emails, facsimiles, telephone messages, voice mail messages and transcripts, notes, or minutes of any meetings, telephone conversations or discussions. Our request includes any attachments to these records. No category of material should be omitted from search, collection, and production. Please search all records regarding agency business. You may not exclude searches of files or emails in the personal custody of your officials, such as personal email accounts. Records of official business conducted using unofficial systems or stored outside of official files is subject to the Federal Records Act and FOIA.3 It is not adequate to rely on policies and procedures that require officials to move such information to official systems within a certain period of time; American Oversight has a right to records contained in those files even if material has not yet been moved to official systems or if officials have, through negligence or willfulness, failed to meet their obligations.4 In addition, please note that in conducting a “reasonable search” as required by law, you must employ the most up-to-date technologies and tools available, in addition to searches by individual custodians likely to have responsive information. Recent technology may have rendered DOJ’s prior FOIA practices unreasonable. In light of the government-wide requirements to manage information electronically by the end of 2016, it is no longer reasonable to rely exclusively on custodian-driven searches.5 Furthermore, agencies that have adopted the National Archives and 3 See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, 827 F.3d 145, 149–50 (D.C. Cir. 2016); cf. Judicial Watch, Inc. v. Kerry, 844 F.3d 952, 955–56 (D.C. Cir. 2016). 4 See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, No. 14-cv-765, slip op. at 8 (D.D.C. Dec. 12, 2016) (“The Government argues that because the agency had a policy requiring [the official] to forward all of his emails from his [personal] account to his business email, the [personal] account only contains duplicate agency records at best. Therefore, the Government claims that any hypothetical deletion of the [personal account] emails would still leave a copy of those records intact in [the official’s] work email. However, policies are rarely followed to perfection by anyone. At this stage of the case, the Court cannot assume that each and every work- related email in the [personal] account was duplicated in [the official’s] work email account.” (citations omitted)). 5 Presidential Memorandum—Managing Government Records, 76 Fed. Reg. 75,423 (Nov. 28, 2011), https://obamawhitehouse.archives.gov/the-press-office/2011/11/28/presidential- memorandum-managing-government-records; Office of Mgmt. & Budget, Exec. Office of the President, Memorandum for the Heads of Executive Departments & Independent Agencies, “Managing Government Records Directive,” M-12-18 (Aug. 24, 2012), https://www.archives.gov/files/records-mgmt/m-12-18.pdf. 3 DOJ-FBI-18-0520 Records Administration (NARA) Capstone program, or similar policies, now maintain emails in a form that is reasonably likely to be more complete than individual custodians’ files. For example, a custodian may have deleted a responsive email from his or her email program, but DOJ’s archiving tools would capture that email under Capstone. Accordingly, American Oversight insists that DOJ use the most up-to-date technologies to search for responsive information and take steps to ensure that the most complete repositories of information are searched. American Oversight is available to work with you to craft appropriate search terms. However, custodian searches are still required; agencies may not have direct access to files stored in .PST files, outside of network drives, in paper format, or in personal email accounts. Under the FOIA Improvement Act of 2016, agencies must adopt a presumption of disclosure, withholding information “only if . disclosure would harm an interest protected by an exemption” or “disclosure is prohibited by law.”6 If it is your position